Employment Law Update October 2015

Travelling to first job of the day is working time for mobile workers

The Court of Justice in Europe has held in Federacion de Servicios Privados del sindicato Comisiones Oberas v Tyco Integrated Security SL that time spent travelling from their homes to customers’ premises by workers who do not have a fixed place of work is “working time” for the purposes of the Working Time Directive.

Tyco employed technicians to install and maintain security equipment at customers’ premises in Spain. The technicians were provided with a company vehicle and travelled from their own homes to various locations, some of which were over 100km away from their homes. The workers received details of their assignments for the following day from Tyco via an application on a mobile phone, which showed them the task list for the following day. Tyco did not regard the first journey of the day (from home to the first job) or the last job of the day (from the last job to home) as working time and the technicians complained that Tyco was breaching working time rules by not including this time as working time.

Tyco argued that the travelling time was a “rest period” rather than working time, as the technicians were not carrying out installation or maintenance work while they were travelling.

The CJ disagreed. Travelling is an integral part of being a mobile worker. When such workers travel to visit customers designated by their employer, they must be considered to be “at work”. As the workers’ travel was an inherent part of their duties and they were “at the disposal” of Tyco during the time they were travelling, their travelling time was “working time” for the purposes of the Working Time Directive.

Disciplinary investigation heavily influenced by HR was unfair

In Ramphal v Department of Transport UKEAT/0352/4 the Employment Appeal Tribunal considered whether an employee had been fairly dismissed in circumstances where the investigating officer had been heavily influenced by the company’s HR department.

Mr Ramphal was employed by the Department for Transport (DFT) as an Aviation Security Compliance Inspector. He was required to spend a significant amount of time on the road, for which he was entitled to receive subsistence. He was entitled to a hire car and had a company credit card with which to pay for the car, as well as other expenses. An investigation was carried out into suspected misuse of Mr Ramphal’s company credit card in relation to excessive petrol use, use of the hire car for personal reasons and some suspicious purchases.

The DFT appointed Mr Goodchild, who had never previously been involved in conducting disciplinary proceedings, to conduct the disciplinary hearing. The first draft of Mr Goodchild’s report concluded that Mr Ramphal’s explanations were both consistent and plausible and that the misuse of his credit card had not been deliberate. The report recommended a finding of misconduct and the imposition of a final written warning. However, after Mr Goodchild completed his report, there were six months of communications between HR and Mr Goodchild. During this time, various amendments to the report were suggested by HR, with the result that favourable comments were removed and replaced with critical comments. The eventual outcome was that Mr Goodchild was dismissed on the grounds of gross misconduct. Mr Ramphal brought a claim for unfair dismissal.

The EAT’S view was that there is an implied term that the report of an investigating officer into a disciplinary matter must be the product of the investigating officer’s own investigations. The dramatic change in Mr Goodchild’s approach was disturbing and the changes to his report were so striking that they gave rise to an inference of improper influence. The EAT allowed the appeal and remitted the case back to the Employment Tribunal.

HR departments are usually closely involved in disciplinary matters. However, unless an employer’s HR officer actually conducts the investigation and/or disciplinary hearing, the HR officer should limit any advice to the individuals who are directly involved in the disciplinary process to advice on law, procedure and consistency and avoid advising on culpability or the sanction they think should be imposed.

Employees who are temporarily laid off may still be part of an “organised grouping of employees” for the purposes of TUPE

The Employment Appeal Tribunal in Inex Home Improvements Ltd v Hodgkins considered whether laying off employees prior to a transfer meant that they were not assigned to the “organised grouping of employees” which transferred to the transferee under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

The Claimants were employed by Inex Home Improvements Ltd (Inex) to carry out painting and decorating work on a building project which was subcontracted to Inex by Thomas Vale Construction Limited (Thomas Vale). Thomas Vale released the work to Inex in stages. When one of the stages of the project had been completed, the Claimants were temporarily laid off. However, Thomas Vale issued the next works order to a different sub-contractor, Localrun (Decorating) Ltd.

The Claimants brought Employment Tribunal claims against both Inex and Localrun. At a preliminary hearing, an Employment Judge held that the Claimants’ employment had not transferred to Localrun, as they were not working at the relevant time and so could not have been part of an “organised grouping of employees”.

Inex appealed to the EAT and its appeal was successful. The EAT took the view that a temporary absence from work did not necessarily mean that employees were not part of an organised grouping of employees for the purposes of a service provision change under TUPE. There is nothing in TUPE which requires the organised grouping of employees to be actively engaged in the activity immediately before the service provision change, or to suggest that a temporary cessation of activities would preclude the existence of an organised grouping.

The EAT commented: “In our opinion a temporary cessation of work in the case of a service provision change immediately prior to the transfer does not necessarily prevent a TUPE transfer taking place. The purpose, nature and length of the cessation are of course relevant in determining whether or not the organised grouping continued in existence.”

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